concurring in part and dissenting in part.
I respectfully dissent from the majority's disposition of the second appellate issue, in which the award of punitive damages is upheld. The Colvins failed to prove by clear and convincing evidence that the breach of the agreed judgment was accompanied by malice, fraud, gross negligence or oppressive conduct.
The majority initially suggests that an award of punitive damages may be supported by evidence that the Bank's chief executive officer, Evans, signed a purchase agreement with the Sorensons without honoring the right of first refusal held by the Colvings. According to the majority, "[t]he jury could have reasonably inferred that Evans acted oppressively or with gross negligence" when he failed to notify the Colvins of the Sorensons' purchase offer.
While the evidence upon which the majority relies may be consistent with the hypothesis of gross negligence or oppressiveness, the evidence is also entirely consistent with the hypothesis that Evans' conduct was the result of a mistake of fact or an honest error in judgment. Evans indicated that he based his decision not to call the Colvins on the realtor's report that they were not interested in buying the property which was the subject of the agreed judgment. The realtor was working with the Colvins to help them locate a larger home. The majority, in essence, permits an award of punitive damages upon inferences permissibly drawn from evidence of no greater persuasive value than that required to uphold a finding of breach of the agreed judgment. See Travelers Indem. Co. v. Armstrong (1982), Ind., 442 N.E.2d 349, 363.
To sustain the award of punitive damages, the majority also focuses upon the conduct of the Bank's attorney, Wilson. Wilson advised the Colvins that they had two days in which to exercise their right of first refusal, when in fact the Bank no longer held title to the property in question. The majority proposes that "the jury could have reasonably inferred that Wilson acted oppressively or with gross negligence in alleging the Colvins had only two days to exercise their right." Again, the evidence is equally consistent with the hypothesis that the tortious conduct was the result of some noniniquitous human failing, such as overzealousness. Such is not the stuff of which punitive damage awards are made.
The Supreme Court has adopted a standard of clear and convincing evidence to sustain an award of punitive damages. ''The propriety of the clear and convincing evidence standard is particularly evident in contract cases, because the breach itself for whatever reason, will almost invariably be regarded by the complaining party as oppressive, if not outright fraudulent." Travelers Indem. Co., supra, at 363. The allegations of fraud, gross negligence and oppressive conduct in the instant case were not borne out by clear and convincing evidence.
For the foregoing reasons, I dissent. I vote to vacate the award of punitive dam*582ages as unsupported by clear and convine-ing evidence.